My new project involves examining legal protections for the public domain under United States copyright law. There’s a doctrinal component to that — what does the law say? — as well as a normative component — why should we care? It’s that latter question that I’ve been noodling around lately.

Anyone who looks for indications that copyright policymakers in the United States (including both Congress and the federal bench) share the belief, held by many legal academics, that a robust public domain is necessary to foster future creative production, is bound to be a little surprised: the evidence is actually fairly equivocal that Congress and the courts actually hold any such view. Even the language Congress and the courts employ seems, if anything, to be skeptical of the value of the public domain: it’s routine to speak of works “falling into” the public domain, which conjures to mind somebody clutching the ledge of a tall building, hanging on for dear life: quick, that work is about to fall! Won’t somebody save it?

The broadest judicial recognition of the value of the public domain that I’m aware of comes from Judge Kozinski‘s memorable dissenting opinion in White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993), which wasn’t even a copyright case:

Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.

Id. at 1513. Later, Judge Kozinski continued:

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it.

Id. at 1517.

I’d like to be able to illustrate Judge Kozinski’s point for skeptical colleagues and friends by citing specific examples of particularly noteworthy works of art that are based on public domain source materials — in simplest terms, I’m interested in contemporary remixes of public domain works. (I appreciate that this is a narrower conception of the influence of the public domain on later creators than Judge Kozinski is actually talking about, but it makes for relatively comprehensible examples.) So, for example, we might say that West Side Story is thought to be a pretty effective transformation of Romeo and Juliet: it takes Shakespeare’s public domain play and makes of it something new, different, and by some measures at least, better.

6 Responses to “What are the Best/Worst “Remixes” of Public Domain Works?”

One that I enjoy is Cheshire Crossing ( http://www.cheshirecrossing.net/ ), which is based on characters from The Wizard of Oz, Peter Pan, Alice in Wonderland and Mary Poppins.

But I think one important area of the musical public domain is arrangements/transcriptions of works that either make use of uncommon or antique instruments so that they can be performed by modern ensembles, or are fragmentary and can therefore be finished.

Oh, another story that’s been on my mind lately is Sweeney Todd. Although the recently-released movie is based on the Stephen Sondheim musical, the story dates back much farther.

Another area of successful utilization is, of course, Disney’s animated features. Whatever you think of their work artistically, they have certainly been successful.

You repeatedly mentioned art, so my comment may be off-topic because it involves science writing which hardly qualifies as art. However I’d suggest the following idea as an improvement and remixing of public domain works.

Many medical journals release abstracts of articles to the NLM for publishing in PubMed under a public domain license. PubMed features advanced search and filter techniques. What it lacks is what Time and Newsweek and paper journals all have – the ability to easily browse and skim the contents.

I had and implemented the idea to build a new front-end for PubMed’s public domain data which enables easier browsing of the mountains of new data that practicing clinicians are expected to keep aware of. The following link ( 501c3 org, no ads) http://daveproject.org/journalfeeds.cfm is the first iteration of that idea.

What is unique in this case about remixing public domain data is that no individual publishing concern controls the material which is combined and remixed. In theory, I could harvest this information from individual publishers themselves, however they could also deny my attempts to harvest data. A subset of the needed information would result.

Expecting physicians to visit 15 different publisher’s sites to browse the same information as provided on one site using public domain data would be time consuming, prone to gaps in information, and ultimately detrimental to society at large. While in this case the individual abstracts are not improved upon, the possibility for aggregation of public domain data can be seen to have it’s own positive benefits.

I’m not sure if this is what you’re after, but two of my favorite novels that take their inspiration directly from public domain works are “Ahab’s Wife” by Sena Naslund and “Wide Sargasso Sea” by Jean Rhys. The former is the imagined life of Melville’s character’s wife (she is only mentioned in passing in “Moby Dick”) and the latter the imagined life of the mad Mrs. Rochester from Charlotte Bronte’s “Jane Eyre” before she was locked in the attic.

And of course, arguably the greatest novel of the 20th Century, “Ulysses,” is a ‘remix’ of Homer’s “Odyssey.” Thank goodness James Joyce didn’t have to contend with Homer’s heirs the way others have had to contend with Joyce’s heirs.

Fairy tales are a rich source of material; Jasper Fforde, Stephen Brust (who also does a mean rewriting of the war in Heaven in To Reign in Hell), Gregory Maguire, Angela Carter, and Neil Gaiman (“Snow, Glass, Apples”–shiver) come to mind as doing really good versions off the top of my head– there’s a long list. http://www.surlalunefairytales.com/index.html has a really comprehensive list. There’s also Jane Smiley’s A Thousand Acres, and though I can understand not liking Troy I suggest that Clueless might be a better example. Though don’t discount pure copying, or performance, of the classics–the many lovely Hamlets I’ve seen, and the unlovely ones, are enabled by the public domain status of Shakespeare, whose heirs might otherwise suppress all those versions set in WWII or the Roaring Twenties or on Wall Street, just as the Gershwin estate disallows crossracial casting in Porgy & Bess and Beckett refuses crossgender casting in Waiting for Godot.

I actually prefer Sir Ian McKellen’s film adaptation of Richard III (set in the 1930s with Richard as a loose analog to you-know-who) to Olivier’s, possibly because I saw the original stage production on tour in D.C. Great examples, all.